Transcript
Anne Holsinger 00:00
Hello, and welcome to 12:01, The Death Penalty in Context. I’m Anne Holsinger, Managing Director of the Death Penalty Information Center. Our guest today is Katherine Judson, Executive Director of the Center for Integrity in Forensic Sciences and former Shaken Baby Syndrome/Abusive Head Trauma Litigation Coordinator for the Wisconsin Innocence Project. She works to promote education and public awareness on the scientific unreliability of many types of forensic evidence commonly used in criminal convictions. Thank you so much for joining us today, Kate.
Katherine Judson 00:34
Thank you so much for having me.
Anne Holsinger 00:36
To get started, could you tell us a little bit about how you got interested in forensic science research and how you got involved with the Center for Integrity in Forensic Sciences?
Katherine Judson 00:45
Absolutely. I was a science major in undergrad, so I had some experience with that kind of material. And I had worked in a medical laboratory for several years, and I had some of that background. So,when I became a public defender after I graduated from law school, I had the background that enabled me to easily understand the kinds of evidence that I and my colleagues were seeing, you know, in our cases. And so I informally had a role of helping folks with forensic science litigation. And then after I left the Public Defender’s Office in Albuquerque, I started working for the Innocence Network, then went on to the Wisconsin Innocence Project, and then was hired from there to run the Center for Integrity in Forensic Sciences when we opened our doors in 2019.
Anne Holsinger 01:41
What are some of the most common forms of junk science that are found in capital cases, and what is their relationship to wrongful convictions? Well, there are about 25% of the cases where someone has been convicted of a crime they didn’t commit and later shown to be innocent involve some kind of faulty forensic science. It’s hard to say precisely which ones are the most common, but one of the things that’s a through line is that generally in cases where there’s a wrongful conviction, and in fact in many cases where there’s a conviction that isn’t wrongful, forensic science analysts, because they have limited guidance, historically would really overstate the value of the testing that they did or the analysis that they did. So, for example, analysts who worked with fingerprints used to routinely testify that there had never been a case where someone’s fingerprints were incorrectly matched to fingerprints found at the crime scene.
And we now know that that isn’t true. So while there’s no single piece of forensic science that results in the most wrongful convictions that I know of, I know that the overstatement of this type of evidence and the use of it beyond what it can scientifically support is often responsible. And commonly, forensic science involves pattern matching disciplines. So that would be things like fingerprints and bite marks and shoe prints and tire tracks and things like that. And those are pretty problematic decisions for a variety of reasons, and some more than others.
Anne Holsinger 03:22
A lot of your work specifically has focused on shaken baby syndrome or pediatric abusive head trauma and how it has now been discredited by recent scientific research. How did the theory behind shaken baby syndrome or SBS, as it’s sometimes known, become so widely known and accepted, and why do experts now call it junk science?
Katherine Judson 03:43
Well, the idea of shaken baby syndrome started in the early 1970s with a couple of physicians, one Norman Guthkelch, who was a pediatric neurosurgeon in Great Britain, and another, John Caffey, who was a radiologist in New York. And they noticed that sometimes infants would die and present at autopsy with internal bleeding without external injury. Typically, the kind of internal bleeding they were seeing was subdural hematoma, which is bleeding between the brain and the skull, retinal hemorrhage, which is bleeding at the back of the eye, and either cerebral edema, which is brain swelling, or encephalopathy, which is brain dysfunction, or both. And they defined this as a syndrome with a number of other symptoms that they sometimes included and sometimes didn’t. And it went from being an effort to explain a mysterious condition to being a paradigm that resulted in a lot of criminal prosecutions that was presented as having no doubt, no error rate, nothing like that. And so it really became, it started to be accepted in courts as most forensic science is, without a really thorough delving into the background and whether or not it was scientifically reliable. And so once folks started predicating criminal convictions on it, it became very difficult to make any changes to it. People were very invested in it and really resisted any kind of challenge to this hypothesis that’s really never been proven in any kind of meaningful way. When folks tried to figure out whether shaking can cause the findings normally associated with it, typically the types of motion involved in shaking falls short of the threshold where we would expect to see brain damage and internal bleeding. And that’s not to say that shaking a baby is safe or that it’s something that folks should do. Of course it’s not. But there’s now a very real question about whether shaking can even cause the types of medical findings that have been attributed to it. What happened to make these beliefs change was that researchers and lawyers and physicians started to see that the same kind of, the same medical findings that were thought to be exclusively diagnostic of abuse, turns out they can occur in all sorts of other scenarios. So where experts previously might have testified that a child with this type of bleeding could only have been abused, only with the mechanism of shaking, and there was no other explanation, now we know that there are other reasons why someone might have these medical findings. And so that’s really what undermined the testimony that was previously given in court. Sometimes physicians still testify to the outdated science, but for the most part, even really avid defenders of this hypothesis now acknowledge that the way that it was presented to juries and others earlier in its history is now known to be wrong.
Anne Holsinger 07:29
Since SBS was first introduced in the 1970s, 41 people convicted using this theory have been exonerated. How frequently has SBS been used in criminal cases and what do you predict the future of those cases might look like?
Katherine Judson 07:45
It’s really hard to know how many cases involve shaken baby syndrome because people aren’t charged with shaken baby syndrome. They’re charged with things like battery or child abuse or homicide, and it can be really difficult to get to the bottom of the medical facts that led to that criminal charge. So it’s really hard to tell. Some organizations like the National Center for Shaken Baby Syndrome estimate that as many as 1,500 children a year fall victim to abusive shaking, but I don’t know that anyone really knows how frequently this paradigm gets used. And more than that, we really have no sense of how frequently claims of child abuse are wrong, although we are pretty confident that the number is not zero. You asked how I would predict the future of these cases and that’s a really hard thing to answer. I would hope that no one would be prosecuted or convicted on the basis of any kind of scientific evidence that has errors or mistakes or that’s overstated or that goes beyond what the science could support, and I think that’s the goal. I don’t know how we’ll get there or if we ever will. What’sinteresting about SBS is that as new information has come to light suggesting that early iterations of this hypothesis were wrong, the folks who are very invested in it have really scrambled to try to put an acceptable face on it. So, what that looks like is sometimes some revisionist history. We sometimes hear experts on child abuse saying that no one has ever claimed that subdural hematoma, retinal hemorrhage, and cerebral edema are exclusively diagnostic of abusive shaking, but of course that’snot true. Many scientific articles and other kinds of publications and transcripts of trial testimony all indicate that doctors, with some regularity, insisted, in fact, that these findings were only present in cases of shaking. And so what some experts have done is change the nomenclature. So instead of calling it shaken baby syndrome, they call it abusive head trauma, but that doesn’t really resolve the underlying question, which is when you see these medical findings, can you know with some kind of certainty that shaking was the cause? So I think one of the things that will change as things go forward is that we’ll see some effort by those who support this hypothesis to change it to make it palatable or accurate. And we’ve seen that with other types of forensic science like bite marks, for example. When bite mark determinations have been shown to be wrong, bite mark analysts will try to preserve their discipline by trying to incorporate the new scientific knowledge without undermining the evidence base or the supposed evidence base for these opinions. We see the same thing in child abuse cases, but unfortunately if something is built on a shaky foundation, you can’t really finagle it after the foundation has been shown to be lacking and not acknowledge the really significant challenges.
Anne Holsinger 11:24
Is there a particular shaken baby exoneration that you find especially compelling or impactful?
Katherine Judson 11:31
All of the cases that I’ve worked on that involve shaken baby syndrome, abusive head trauma, are heartbreaking. They’re very moving because often someone has lost a family member or someone that they love. So people who were very devoted caregivers who loved the children in their care andhappened to have a medical emergency on their watch, and especially parents and other family members who have lost children in their care. So all of those stories are heartbreaking, are very moving, very compelling. We had a client in the last few years whose exoneration really, I think, does a good job of highlighting the problems with SBS/AHT and the way that the science has evolved. And that’s an Ohio case that I worked on alongside the Ohio Innocence Project. Our client’s name is Alan Butts, and Alan was watching his partner’s child when this child had a medical emergency and passed away. At Alan’s trial, experts testified to the same types of claims that I’ve been talking about where, you know, they said because the little boy had these medical findings, there was only one explanation.It had to have been abusive shaking, and it had to have been Alan who did that abusive shaking because Alan was the only adult at home at the time that the child collapsed. It’s a fairly commonpicture of an SBS case. In that case, we were able to show after, you know, unfortunately, much too long after his conviction, ideally he would not have been convicted at all, but we were able eventually to show that there were lots of other medical explanations for the child’s collapse and eventual death,including some metabolic problems and an infection that was extremely serious. And I think it’s a good picture of the ways in which the understanding has changed.
Anne Holsinger 13:55
I’d like to talk about a current case involving shaken baby syndrome, and that’s the case of Robert Roberson, who is scheduled to be executed on October 16th, 2025 in Texas. Mr. Roberson was convicted of killing his two-year-old daughter Nikki. Doctors at the time and the prosecutors who tried Mr. Roberson claimed that Nikki died of shaken baby syndrome, but new evidence has discredited that assertion. What likely caused Nikki’s death and how were her symptoms confused for SBS?
Katherine Judson 14:26
Right, so as you explained, Nikki was determined to have been abused and the claim was that she was abused by her father. There were all kinds of medical errors in her case, but I think really significantly, she was a very sick child. She’d had dozens of doctor’s visits before the emergency room event where she ultimately passed away. She had ample evidence of extremely serious illness that was simply ignored at the first trial and in the run-up to the first trial. And she also had been prescribed medications in incorrect dosages and that we now know, although we didn’t know at the time, that those medications are very dangerous to young children and in fact don’t get prescribed to children Nikki’s age anymore, for the most part. So, while it’s impossible I think to pinpoint one cause only of her death, she had a viral and a bacterial pneumonia, which is sometimes called double pneumonia. She had a long-standing history of medical problems and she had been prescribed inappropriate medications. So any one of those things can cause, you know, serious illness or even death, but the combination of them is likely very deadly. I think that what happened in this case initially, it ties in very neatly with Mr. Butt’s case. The facts are very similar, but what’s significant is that at the time that he was tried in 2002, experts really believed and had been told and trained that the only explanation forthese types of findings was child abuse. So they didn’t look for the other possible examples and that’ssomething that happens relatively commonly in wrongful conviction cases. Investigators get tunnel vision, they can sometimes be led astray by facts that don’t turn out to be particularly relevant. It’s not because investigators are intending to get the wrong result or doctors are intending to get the wrong result, but mistakes occur and can be obviously really, really serious.
Anne Holsinger 17:06
You talked a little bit earlier about the set of symptoms that is used to diagnose SBS. How did the underlying health issues that Nikki had confuse doctors and lead them to diagnose SBS in that case?
Katherine Judson 17:26
Sure. It is a little bit difficult to understand just without more explanation, so I completely get it. The infection and illness that she was suffering from, and this is something that can happen to people who are very ill with a number of different diseases. She became so unwell that the way that her blood was clotting and bleeding was no longer appropriate. So her body was making clots where they did not belong, again because she was so ill, and it was also not clotting properly when she did bleed. And soas a result of these issues, she ended up with internal bleeding.
Anne Holsinger 18:19
Thanks for explaining that. I agree that these can be really confusing cases.
Katherine Judson 18:24
Absolutely.
Anne Holsinger 18:25
Mr. Roberson was diagnosed with autism spectrum disorder in 2018 while he was in prison. At the time of the trial, his autism had not been diagnosed. How did that undiagnosed autism affect his trial and were there other factors that you think had an impact on the outcome?
Katherine Judson 18:44
Yes. So, we know that when decisions are subjective in the criminal legal system, actors within the system have less guidance and tend to fall back on other decision-making factors. So, Robert’s lack of emotion, or a perceived lack of emotion, at Nikki’s bedside when she was dying was believed by investigators to be because he didn’t care, not because he has a neurodivergence that makes him react differently to different situations. Even people who do not have autism will react differently in situations involving grief, and it is not terribly unusual in wrongful conviction cases for an investigator to make an incorrect assumption about the reason for that. But certainly a person with autism spectrum disorder will often have reactions that neurotypical people find surprising or sometimes even off-putting. And that’s just part of that neurodivergence, not an indicator of guilt, but it was interpreted as an indicator of guilt. And people didn’t know that he had autism at the time, so there wasn’t what investigators would have considered a good explanation for why he was acting the way that he was. But what is interesting about this question is that Detective Wharton, who has now left the police force and really become a strong advocate for Robert, despite being one of the investigators that initiated the case back over 20 years ago, is now that he knows that he was speaking with a person on the autism spectrum, he has really reframed his interpretation of his interactions with Robert. And I suspect that if other people who were responsible for making decisions in this case had that information, they might have interpreted things differently as well. You know, juries often look at the behavior of a defendant who’s on trial and draw conclusions from, you know, what they’re seeing, perhaps without context. There are other actors in the system who, you know, have different reactions to someone who doesn’t behave the way that they expect, but having that diagnosis, I think, goes a long way toward explaining why folks were confused about his behavior and why he was behaving the way that he was.
Anne Holsinger 21:37
As you mentioned, the lead detective on this case who testified (21:41) against Mr. Roberson in his original trial has since spoken out against the execution. He’s one of many people who have spoken out against this pending execution, including death row exonerees, forensic experts who have re-examined the evidence surrounding Nikki’s death, and of course the lead detective. What is it that you think sets this case apart that it has drawn so much attention?
Katherine Judson 22:08
There are a lot of reasons. It certainly is compelling to me that one of the lead investigators is right up at the front of this case acknowledging error. That is so impressive and requires such strength of character and such bravery. It’s very difficult to admit when you make a mistake, especially one with such serious consequences, and I really commend Mr. Wharton for coming forward with these concerns. It’s not something that people do often enough and acknowledge mistakes and it’s pretty amazing. We just don’t see that all that often. I also think that having a looming execution date is something that can cause people to pay attention to, you know, a potential injustice because even though we don’t want anyone to be wrongfully convicted or incarcerated, most people understand that you can’t reverse a wrongful execution. It is totally final. If Robert is executed, there’s no way to fix that mistake. That is just final. So I think that’s another reason why it’s captured so much attention, even more so than the stories of injustice that, you know, many people who work in jobs like mine see all the time. This is particularly egregious.
Anne Holsinger 23:43
Yeah, I think it’s also notable that if Mr. Roberson is executed next month, we’re recording this in September of 2025, if he’s executed next month, he would be the first person that we know of who has been executed based on shaken baby syndrome evidence. Is that right?
Katherine Judson 24:00
That’s what I understand. We have had other cases with clients who were on death row, but I am not aware of someone who has actually been executed based on a claim of shaken baby syndrome.
Anne Holsinger 24:12
Mr. Roberson was originally scheduled for execution about a year ago in October of 2024, but he was saved at the last minute by a group of Texas state legislators. Could you explain how that occurred and also why his execution was then rescheduled?
Katherine Judson 24:29
Well, I don’t know why his execution has been rescheduled. There’s no real urgency that I’m aware of to execute him, and it is unprecedented for someone to be executed while they still have appeals pending, which Robert does. So I don’t know why the state is so intent upon killing Robert. I just don’tknow. But in terms of what happened last year with the legislators, it goes back to a law that Texas passed years ago that was at the time the first of its kind. Now I think there are eight other states who have similar laws, but the bill often gets called the junk science writ bill, but it was a law that endeavored to allow people who’d been wrongfully convicted to, especially those who’d been wrongfully convicted based on some kind of discredited or incorrect science or scientific evidence, to make it somewhat easier for those people to challenge their convictions. It’s very difficult to challenge a wrongful conviction after its final, and the Texas legislature was attempting to remedy that for a subgroup of wrongfully convicted people. There are lots of really good questions about whether that law has been particularly successful and whether it reaches enough wrongfully convicted individuals, but certainly no one can argue that the legislatures were coming from anything but a place where they wanted to prevent an injustice or many injustices. And so when Robert was scheduled to be executed last year, the legislators who had, many of whom had a role in passing this junk science writ bill, became alarmed that Robert wasn’t getting relief because they had envisioned cases like his as ones that should fall within the purview of this law. And so they began an investigation into why the law had seemingly failed in this circumstance, and that was what compelled them to have a series of hearings on the issue. And ultimately, Robert’s execution was stopped because they had not heard from him, and the legislators who convened this committee wanted to hear from him in his own words and subpoenaed him, but he could not be brought in front of them until after the planned execution date. It went up to the Texas Court of Criminal Appeals, and an interesting legal situation ended up in front of the Texas Supreme Court where criminal cases do not typically go because they were asking questions that involved legislative power. And so the Texas Supreme Court, which is unusual in these cases, ultimately stopped Robert’s execution by holding that the legislature had a right to talk to him about what was going on and whether the law that they had passed had been faithfully applied.
Anne Holsinger 27:54
So we’ve just spent all this time talking about the evidence that could have potentially absolved Mr. Roberson in this case, and yet he remains on death row. What legal blocks have prevented and continue to prevent his exoneration?
Katherine Judson 28:08
All wrongful convictions, as I said before, are really difficult to undo once they have become final. So once somebody has been convicted and their appeals process has been exhausted, there’s nowhere else they can appeal, the conviction becomes final, and our legal system really values finality. And there are some good reasons for that. People who are accused of crimes should be able to know what to expect, and they should be able to have their case resolved if that’s what they want. People who are crime victims should have the ability to get closure and not have that ruling be disturbed. But what the focus on finality misses is that no system is perfect, and the legal system is in many ways not as good as we used to believe. And so it’s clear that people are wrongfully convicted. It’s clear that it’s very difficult to undo those wrongful convictions. There are procedural reasons why it’s difficult. There arehuman reasons why it’s difficult. Generally there are all kinds of reasons why these get prevented.There are lots of stringent deadlines. There are limits on how many times someone can file petitions. All of these things sort of conspire together to make it really difficult for people to get relief. For Mr. Roberson, a number of things happened. There were problems. It’s been a long road for him. He’sbeen challenging his conviction for years and years. Again, it’s difficult to get back in front of a court, have the court listen to evidence, and potentially reverse a conviction. It’s very difficult for folks to do, because of the way that our legal system is set up. The other thing that I think is important in Robert’s case and a lot of cases like his are that when there’s a violent crime that has a victim, particularly when that victim is a child, it is really difficult for people to see past that and entertain the possibility that someone who’s accused of doing a horrible thing to a child might actually be innocent. That’s often really difficult for people to accept. So I think a lot of things conspire to make it really hard for folks to get relief in these kinds of situations.
Anne Holsinger 30:40
Is there anything else that you’d like to share with our listeners?
Katherine Judson 30:42
I think it’s important for people to know that despite what we sometimes see in television and movies, that forensic science is not infallible. In fact, in a whole lot of situations it’s a lot of forensic and not very much science. I think that we should understand the things that happen in our country, in our names, and really recognize that there are other Roberts out there. There are other people who are in prison for crimes just like he was accused of who are actually innocent. And I would encourage folks to think about these kinds of cases with an open mind and understand that error occurs, and that we really need a better way of addressing it and solving it.
Anne Holsinger 31:31
Thank you so much for taking the time to speak with us today.
Katherine Judson 31:34
Thank you so much for having me.
Anne Holsinger 31:36
If our listeners would like to learn more about the work of the Center for Integrity in Forensic Sciences, they can visit their website at cifsjustice.org, and to learn more about the death penalty across the U.S., you can visit DPI’s website at deathpenaltyinfo.org. To support the 12:01 podcast and all of DPI’s work, please visit deathpenaltyinfo.org/donate, and to make sure you never miss an episode, please subscribe to 12:01 in your podcast app of choice.
